India’s personal laws govern some of the most intimate aspects of human life, including marriage, divorce, sexuality, and family relations. When the State seeks to regulate these private domains through criminal law, it raises serious constitutional concerns. Over the last decade, the Supreme Court of India has been repeatedly confronted with the question of whether criminalisation of personal conduct advances justice or merely enforces morality. The Court’s evolving jurisprudence reveals a gradual but deliberate shift from punitive moral regulation to a more compassionate, rights-based constitutional approach.
Criminal law represents the most coercive instrument available to the State. The Supreme Court has consistently emphasised that not every social or moral wrong warrants criminal punishment. In matters governed by personal laws, this principle assumes greater significance, as penal provisions often intrude into individual autonomy and decisional privacy. The Court has applied constitutional tests of arbitrariness, proportionality, and reasonableness, particularly under Articles 14 and 21, to assess whether criminalisation serves a legitimate purpose or merely reinforces societal control over private relationships.
This judicial resistance to moral criminalisation is clearly reflected in the landmark judgment of Joseph Shine v. Union of India (2018), where the Supreme Court struck down Section 497 of the Indian Penal Code, which criminalised adultery. The Court held that the provision was manifestly arbitrary, discriminatory, and violative of personal liberty. It rejected the notion that criminal law could be used to enforce sexual fidelity or patriarchal authority within marriage. While recognising adultery as a possible civil wrong and a ground for divorce, the Court firmly concluded that penal consequences for consensual adult relationships were unconstitutional.
A similar constitutional philosophy underpinned the Court’s decision in Navtej Singh Johar v. Union of India (2018), which decriminalised consensual same-sex relationships by partially striking down Section 377 of the IPC. The Court unequivocally rejected societal and religious morality as valid bases for criminal sanctions and elevated constitutional morality as the guiding principle. By recognising sexual orientation as an intrinsic aspect of identity and dignity, the judgment reinforced the idea that criminal law cannot be used to stigmatise consensual intimacy or suppress minority identities.
However, the tension between criminalisation and compassion is not always resolved through decriminalisation. In Shayara Bano v. Union of India (2017), the Supreme Court declared the practice of instant triple talaq unconstitutional for being arbitrary and violative of women’s dignity. While the judgment itself did not mandate criminal penalties, Parliament subsequently enacted legislation criminalising the practice. This legislative response triggered a wider debate on whether penal intervention genuinely empowers women or risks unintended consequences such as family breakdown, economic insecurity, and misuse of criminal process. The episode highlights the complexities involved when criminal law is employed as an instrument of social reform within personal law regimes.
Beyond high-profile decriminalisation cases, the Supreme Court has increasingly adopted a compassionate constitutional approach in matters involving live-in relationships, maintenance, and protection from domestic violence. By recognising non-traditional family structures and expanding the interpretation of “relationships in the nature of marriage,” the Court has sought to protect vulnerable individuals without resorting to excessive criminal sanctions. This approach reflects an understanding that personal relationships are socially complex and require welfare-oriented solutions rather than purely punitive responses.
At the same time, the Court has been careful to clarify that compassion does not imply tolerance of harm or impunity. Criminalisation remains both necessary and justified where personal law practices involve violence, coercion, or serious violations of fundamental rights. Offences such as domestic violence, sexual abuse, child marriage, and honour crimes continue to warrant strict penal consequences due to their grave impact on human dignity and bodily autonomy. The Court’s jurisprudence therefore reflects a calibrated balance rather than an absolute rejection of criminal law in personal matters.
The constitutional foundation of this balancing exercise lies primarily in Articles 14, 15, and 21 of the Constitution, read in-light of the Preamble’s commitment to justice, liberty, and equality. By treating dignity and autonomy as central constitutional values, the Supreme Court has redefined the limits of State intervention in personal life. The emerging judicial consensus suggests that criminal law must function as a shield to protect individuals from harm, not as a sword to enforce conformity or moral orthodoxy.
In conclusion, the Supreme Court’s approach to criminalisation versus compassion in personal laws reflects India’s constitutional evolution. By resisting the urge to criminalise private morality and by prioritising individual dignity and choice, the Court has strengthened a rights-centric vision of justice. As personal laws continue to evolve alongside social change, this jurisprudence offers a constitutional framework grounded not in fear or punishment, but in empathy, proportionality, and human dignity.
